Andhra Pradesh High Court - Amravati
Kurra Somayya vs The Ponnur Municipality on 9 January, 2024
IN THE HIGH COURT OF ANDHRA PRADESH:: AMARAVATI
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
APPEAL SUIT NO.578 OF 2008
JUDGMENT:
-
The Appeal, under Section 96 of the Code of Civil Procedure, 1908
[for short „the C.P.C.‟], is filed by the Plaintiff challenging the Decree and
Judgment, dated 17.03.2008, in O.S.No.110 of 2005 passed by the Senior
Civil Judge, Bapatla, [for short „the trial Court']. The Respondent herein
is the defendant in the said Suit.
2. Both the parties in the Appeal will be referred to as they are
arrayed before the trial Court.
3. The brief averments of the plaint, in O.S.No.110 of 2005, are as
under:-
4. Plaintiff is the Civil Contractor. The defendant called for tenders for
construction of drains from Kondamudi Road to Railway Over Bridge and
from Kondamudi Road to Repalle Road and the agreement was executed
on 27.03.1999 for the estimated value of Rs.13,89,135/- and he has
deposited an amount of Rs.87,000/- as a security. The plaintiff completed
the work on 11.05.2000. The part payment of an amount of
VGKR, J
Rs.21,80,000/- was made in three installments. As per the normal
practice, the balance amount due by the date of completion of contract
shall be paid within two (2) months after the date of completion of the
contract and the security deposit amount shall be paid within six (6)
months after the completion of the work. So, the amount shall be paid by
the end of July, 2000. But, the defendant paid the amount in the year
2005. So, the plaintiff is entitled for damages on delayed payments with
interest at the rate of 24% per annum. Subsequently, after completion of
the contract, the defendant is due for the work done and the security
deposit of Rs.87,000/-. There was further delay in payment of balance
due; as such, the plaintiff got issued a registered notice to the defendant
claiming amounts and filed the suit for damages for an amount of
Rs.7,53,430/-.
5. The defendant filed written statement denying all the allegations
made by the plaint. The defendant pleaded that as per the work order,
the plaintiff has to complete the work within a period of sixty (60) days
i.e., by 18.05.1999, but he did not do so and completed the work with a
delay of one year. The defendant further pleaded that as per
Clause 59 (b) of Preliminary Specification to Andhra Pradesh Detail
VGKR, J
Standard Specifications penalty at the rate of 5% on the contract value is
to be levied at Rs.1,69,457/- from the contractor with regard to the delay
in completion of the work. But the defendant has not levied the said
amount with an intention to complete the work by the plaintiff in a
smooth manner. The defendant further pleaded that the entire amount is
paid by the defendant. So, the plaintiff is not entitled for such damages
with interest at the rate of 24% per delayed payments without completing
the work within a stipulated time and the plaintiff is not entitled to claim
any such damages.
6. Based on the above pleadings, the trial Court framed the following
issues:
i) Whether the plaintiff is entitled for recovery of
damages as prayed for in the plaint?
ii) Whether there is no clause stipulated either in the
work order or in the agreement that the contract is
entitled for damages on the delayed payments?
iii) Whether the plaintiff has not protested for any
damages or interest and in fact waived his claim for
damages and received the final payment in full and
final satisfaction of all his claims?
iv) Whether the defendant need not pay any amount to
the plaintiff?
VGKR, J
v) Whether there is no cause of action to file this suit
and whether the suit claim is false and vexatious one?
vi) To what relief?
7. During the course of trial in the trial Court, on behalf of the
Plaintiff, he himself was examined as PW1 and got marked as Exs.A1 to
A3 documents. On behalf of the defendant/The Ponnur Municipality, the
Officials of defendant Municipality were examined as DW1 and DW2 and
got marked Exs.B1 to B4 documents.
8. Heard both learned counsel.
9. Learned counsel for the appellant would contend that the judgment
passed by the trial Court is contrary to law and instead of granting
damages to the plaintiff, the trial Court came to a wrong conclusion and
dismissed the suit.
10. Per contra, learned counsel for the respondent would contend that
on appreciation of entire evidence on record, the trial Judge rightly
dismissed the suit filed by the plaintiff and there are no merits in the
present appeal.
VGKR, J
11. Now the point for determination is:-
"Whether the Decree and Judgment passed by the trial
Court needs any interference? If so, to what extent"?
P O I N T:-
12. As per the case of the plaintiff, he is a Civil Contractor and the
Defendant/The Ponnur Municipality called for tenders for construction of
drains from Kondamudi Road to Repalle Road and an agreement was
executed on 27.03.1999, for the estimated value of Rs.13,89,135/-.
13. It is not in dispute that the defendant paid total amount but he
paid within three installments. Learned counsel for the appellant would
contend that the defendant paid an amount of Rs.20,00,000/- in the year
2003 and so also, an amount of Rs.2,00,423/-, which is the balance
amount, in the year 2004, after receipt of legal notice and there was a
delay on the part of the defendant and that the plaintiff is entitled to claim
damages.
14. The plaintiff approached the Court seeking damages against the
defendant/The Ponnur Municipality, therefore, the burden is on the
plaintiff to prove his case by producing the oral and documentary
VGKR, J
evidence. The plaintiff himself alone was examined as P.W1 to discharge
his burden, the plaintiff relied on Exs.A1 to A3 documents marked in his
favour. Ex.A1 is the nothing but office copy of Legal Notice, Ex.A2 is the
Postal Acknowledgment and Ex.A3 is the copy of the work order.
15. In order to prove the case of the plaintiff, the plaintiff relied on his
sole testimony as P.W1. The plaintiff is claiming for damages of
Rs.7,53,430/- for delayed payments made by the plaintiff. Admittedly, the
plaintiff instituted a suit for damages for delayed payments made by the
defendant/Municipality for the plaint schedule work undertaken by him
given by the defendant/Municipality. The evidence of P.W1 clearly goes
to show that he started the work in the month of May, 1999. The
material on record clearly goes to show that the entire work was
completed by the plaintiff on 11-05-2000 and part payment was made in
the year 2004 and the final payment was made in the year 2005. The
plaintiff accepted the final payment in the year 2005, without any protest.
16. In order to prove the case of the plaintiff he also relied on
Exs.A1 to A3. Ex.1 is the copy of the Legal Notice, A2 is the Postal
Acknowledgement and A3 is the Copy of the work order. The chief
VGKR, J
affidavit of P.W1 is nothing but contents in the plaint filed by the plaintiff.
In cross-examination when it was elicited, the plaintiff admitted that the
agreement did not disclose about the entitlement of damages for the
delayed payments and there is no interest clause for the delayed
payments. Therefore, the burden rests on the plaintiff to prove under
what provision of law or under what circumstances the plaintiff is entitled
for damages with interest.
17. Per contra, to discharge its liability the defendant/Municipality
relied on the evidence of D.Ws.1 and 2, who are none other than the
officials of the defendant/Municipality. As per the work order Ex.B3, the
plaintiff has to complete the work within a period of sixty (60) days. As
stated supra, the plaintiff commenced the work in the month of May, 1999
and completed his work on 11-05-2000. The defendant/Municipality relied
on Ex.B3 work order. There is a specific recital in Ex.B3 that the work has
to be completed within a period of sixty (60) days by the
contractor/plaintiff. The plaintiff did not produce any proof to show that
he completed the work within a period of sixty (60) days and there are no
latches on the part of the plaintiff. As seen from the Ex.A4 agreement
which is executed in between the plaintiff and defendant/municipality,
VGKR, J
there is no specific clause for damages and interest for the delayed
payment. The plaintiff accepted the Ex.B4 agreement by accepting the
conditions mentioned in the Ex.B4 agreement and he cannot go back by
the terms of Ex.B4 agreement.
18. Admittedly, the work was undertaken by the contractor with the
financial assistance of Central Government and State Government and so
also with other financial institutions. Therefore, the fund has to be
released by the Government. Admittedly, the delay occurred due to
release of funds by the Government with a delay and there are no willful
latches on the part of the defendant for making delayed payments. As
stated supra, the plaintiff accepted the final installment in the year 2005
without any protest. The evidence of D.Ws.1 and 2 and Exs.B2 to B4
clearly proves the defense of the defendant/municipality. As stated supra,
there was an agreement in between both the parties i.e., plaintiff and
defendant and in that agreement, there is no clause with regard to the
rate of interest or damages in respect of the delayed payments made by
the defendant/municipality. Therefore, there are no latches on the part of
the defendant for making delayed payments.
VGKR, J
19. The trial Court on appreciation of entire evidence on record rightly
dismissed the Suit and there is no illegality in the said finding given by the
trial Court. There are no merits in the appeal, therefore there is no need
to interfere with the Judgment and Decree passed by the trial Court.
Accordingly, the point is answered.
20. In the result, the Appeal Suit is dismissed confirming the
Judgment and Decree, dated 17.03.2008 passed in O.S. No.110 of 2005
by the Senior Civil Judge, Bapatla. No order as to costs.
As a sequel, miscellaneous petitions, if any, pending in the Appeal
shall stand closed.
_________________________
V.GOPALA KRISHNA RAO, J
Date: 09.01.2024
CVD
